One of the most popular posts on the iCouch blog was our 2015 article Crossing the line: a legal argument for interstate online therapy. Thousands of people have read it and it still enlivens debates on the topic of cross-state online therapy. I’m not going to rehash the main points here, please read the original! However, given that the most popular question we get at iCouch is “Can I practice online therapy across state lines?” we decided that another article was warranted!
Can you practice telemental health across state lines?
Our official answer, as always, is that we are not attorneys and thus it isn’t appropriate for us to provide legal advice. Furthermore, iCouch isn’t an “online therapy site” as much as it’s a behavioral health practice management system, which includes an online therapy feature. What that means is that how you use our tools are entirely at your discretion. All practitioners are welcome at iCouch, even if they never touch online therapy. Our job is to provide tools, your job is to provide care! It’s up to you to decide how to run your business.
However, in the name of helping mental health practitioners become more informed and effective, we definitely won’t shy away from providing context and information that might help you in your own decision process. Hopefully as well we might be able to educate state licensing boards as to the law and perhaps move the needle towards cross-state mental health treatment being routinely accepted.
State Licensing Boards aren’t constitutional law experts
Too often state licensing boards seem to think that they were elected to Congress or are experts in constitutional law. They weren’t and they aren’t. They are generally mental health practitioners or administrators just like you are. Some have quite a few initials after their name, but unless one of those is “J.D.” then it’s quite possible they have little experience when it comes to the effect of case law precedents. In short, their perception of their power is infrequently tempered by pesky things like the Constitution or the Supreme Court! Practitioners generally defer to these faceless bureaucrats (because they hold your ability to practice in their hands) and rarely do licensing boards get challenged in court. (Although the Teladoc Case is certainly one to watch!)
Let me qualify that last statement just to avoid misunderstandings: state licensing boards are generally empowered by their respective state governments to make regulations pertaining to the licensure of mental health professionals. They are generally honorable, smart people who have good intentions. However, what power they don’t have is to make regulations that violate federal law, despite some of them actually doing so.
The Constitution is the supreme law of the United States and the Supreme Court is the final word on the interpretation of that law. What that means is that Supreme Court decisions have the same force as if the President had signed a bill from Congress. For example, the requirement of reading a criminal suspect their Miranda rights. Congress didn’t pass a law requiring that — it resulted from the 1966 decision in Miranda v. Arizona. Yet every police officer in the United States is required to read the Miranda rights to criminal suspects despite there being no actual federal or state statute requiring such.
Some basic ideas about cross-state online therapy
There are those that suggest that a therapist in Nevada conducting a secure video session with a client in Atlanta is “in Atlanta” for the purposes of the law and thus should be licensed in Georgia to legally see that client. I disagree. And, here’s why:
If I were to be in Texas and make a call to someone in Georgia to defraud them out of money, Georgia wouldn’t come to Texas to arrest me. The FBI would even though Georgia has laws against wire fraud. The problem is one of jurisdiction. Even though the victim was in Georgia, the fraud itself was interstate. Georgia wouldn’t have jurisdiction because the crime wasn’t actually committed in Georgia — it was committed over the “wire” between Texas and Georgia. The crime would have a so-called “interstate nexus.”
The courts have ruled on the concept of “nexus” many times in the past. As I mentioned in our previous post, I discussed the Quill case that established that a retailer with no physical nexus within a state can’t be forced to charge sales tax. The previous article goes into detail, so I won’t repeat it here. However, physical nexus is a very important test of who could have jurisdiction in the case of a therapist practicing across state lines.
However, let’s assume some facts, despite them not being in evidence. Let’s assume that our therapist in Nevada seeing a patient online who lives in Georgia is actually considered “practicing in Georgia.” Basically, let’s apply the strictest interpretation of licensure laws regardless if those interpretations are actually valid.
It’s a fact that the therapist is physically in Nevada. It’s a fact that the therapist is licensed in Nevada. It’s a fact that Georgia law requires a therapist practicing in Georgia to be licensed by Georgia. Let’s unpack those facts for a moment.
A Nevada licensed therapist practicing in Nevada apparently has no right to practice in Georgia. However, Baldwin v. G.A.F. Seelig (1935) was a case that determined that a New York law prohibiting the sale of out-of-state milk within New York was unconstitutional. New York claimed that the law protected local dairies from price competition and thus prevented them from having to sell inferior milk in order to compete on price. Essentially, the Baldwin case established that a state must have an vital interest with no other alternative before passing a law that restricts out-of-state commerce.
One could argue that the licensing of mental health practitioners and the “protection” of patients is a very important interest. However, Philadelphia v. New Jersey (1976,) the Supreme Court ruled that New Jersey couldn’t ban the importation of garbage into the state despite a strong environmental justification.
However, an even more interesting case is Edwards v. California (1941.) Edwards considered a challenge to a California law aimed at reducing the influx of dustbowl indigents to the state. The California statute made it a crime to bring into the state any indigent non-resident. Finding people in this case to be “articles of commerce,” the majority found the statute to be a form of unconstitutional discrimination against out-of-state commerce.
What those cases mean is that a state has a very, very high bar to prohibit out-of-state practitioners. A state would have to establish that an out-of-state practitioner would cause actual harm to their residents. Given the similarity of licensing requirements across the states, that’s an impossible barrier to argue.
Maine v Taylor (1986) is a rare exception of a Supeme Court decision upholding a state statute that discriminated against out-of-state commerce. The Court accepted the trial court’s findings that no non-discriminatory alternatives to Maine’s ban on the importation of live baitfish adequately served the state’s interest in preventing the introduction into Maine waters of new parasites and non-native fish species that might upset Maine’s ecosystems.
If we were to apply the Maine case to our Nevada therapist example, we’d have to prove that the Nevada therapist would result in irreparable harm to the state of Georgia.
In the consolidated cases of Granholm v Heald and Swedenburg v Kelly, involving challenges to Michigan and New York laws respectively, the Supreme Court considered whether the 21st Amendment gave states the power to discriminate against out-of-state liquor distributers in ways that would otherwise clearly violate the Commerce Clause. In its 2005 decision, the Supreme Court, on a 5-4 vote, found that state laws that prohibited out-of-state wineries from selling wine over the Internet directly to consumers violated the Commerce Clause.
Case after case supports the assertion that one state can’t prevent therapists from another state conducting therapy with residents of that state.
However, I’m not advising anyone to physically start practicing within another state. (I’m not advising anything remember!) What I am saying is that:
- State A doesn’t have jurisdiction over a therapist who is physically in State B, unless the therapist has a “physical nexus” (i.e. a house, office, business) within that state. (This was covered in the earlier post.)
- Licensing boards that prohibit out of state patients or practitioners are violating a substantial body of federal case law in regards to the Commerce Clause. (The point of this post.)